People’s Journal
OPINION

Flawed trials of Boko Haram suspects and need for victim participation

Nigeria’s prosecution of suspected Boko Haram members has been characterized by serious legal shortcomings, and the authorities are failing to prioritize prosecution of those most responsible for the group’s atrocities, Human Rights Watch said on Sunday.

In October 2017, authorities began trials of Boko Haram suspects, some of whom have been detained since the conflict began in 2009. Most of the 1,669 suspects prosecuted so far were charged with providing material and non-violent support to the group. People and communities victimized by its brutal attacks have been excluded from observing or testifying in the legal proceedings.

“Nigeria needs to pursue justice for those responsible for Boko Haram’s atrocities and end the prolonged detention of thousands of suspects,” said Aniete Ewang, Nigeria researcher at Human Rights Watch. “However, to achieve justice and deter extremist attacks, the Nigerian government’s overall strategy and trial procedures need to conform with constitutional safeguards and international standards.”

The first round of trials, in October 2017, involved 575 defendants and was shrouded in secrecy, drawing concerns about fair trial and due process issues from several rights groups, including the Office of the UN High Commissioner for Human Rights. Subsequent rounds in February and July 2018 at Wawa Cantonment, a remote military base in Kainji, Niger State, were open to a few monitors from nongovernmental groups and some media personnel.

In the third round, which Human Rights Watch monitored on July 9 and 10, over 200 defendants, including three women, were tried for offenses under the Terrorism Prevention Amendment Act of 2013. Three judges of the Federal High Court presided over the trials in small makeshift courtrooms on the military base where the suspects had been detained. The courts convicted 113 defendants, acquitted 5, and discharged 97 without trial based on the court’s determination that they had no case. Nine cases were struck out due to errors, some of which caused defendants who had been tried and convicted or discharged in previous rounds to be inadvertently brought to trial again, and nine more were adjourned for further trial in Abuja.

In 7 of about 60 cases Human Rights Watch monitored, Federal Justice Ministry prosecutors brought charges for murder, kidnapping, and other crimes, including during gruesome attacks in Damaturu, Bama, and Baga in 2015, and the abduction of 276 schoolgirls in Chibok in April 2014. But most defendants were prosecuted solely for providing “material and non-violent support” to Boko Haram, including by repairing their vehicles, laundering their clothes, or supplying them with food and other items.

 The proceedings were very short, with some lasting less than 15 minutes, raising several fair trial and due process concerns. Most charges were couched in ambiguous and vague terms without the crucial information Nigerian law requires, like the specific date, place, and details of the alleged offense. Other procedural lapses included a lack of official interpreters and the use of untrained unofficial interpreters; reliance on alleged confessions; charging previously discharged defendants again for the same offenses; and unclear orders for rehabilitation for some defendants whose releases were ordered. All had public defenders, and some defendants told Human Rights Watch that they had not been able to consult with their lawyers until the day of trial.

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A 28-year-old woman charged with concealing information, providing support, and knowingly aiding and abetting the kidnap of children by Boko Haram told Human Rights Watch that she had not been allowed to contact any member of her family to prepare a defense since she was arrested in Kaduna in 2013. She was found guilty and sentenced to time already spent in detention.

Some suspects were tried individually, but others were tried in groups, in some cases without consideration of whether they had been coerced into committing the offense for which they were being tried or had done it simply to survive. The volume of defendants in the “material support” category made it difficult to focus available resources on prosecuting those charged with more serious offenses, a few of whose cases were deferred for further trial in Abuja.

In one case, a defendant accused of failing to provide information to the authorities regarding the activities of Boko Haram mechanics told the court after pleading guilty that he could not report because his community was under the control of Boko Haram, and there was no way to access the authorities. Human Rights Watch previously documented forced recruitment of students, teachers, and others at the peak of the Boko Haram insurgency.

Although the courts discharged 97 defendants and acquitted five more in the July trials, there are fears that they might not have been released. Several people ordered released in the previous trial rounds were arraigned for the same charges in July, apparently inadvertently.

On July 25, Human Rights Watch sent its findings to the justice ministry; the Legal Aid Council of Nigeria, a government-funded public defense agency; and the National Human Rights Commission, seeking a response to questions and concerns about the fair trial and due process irregularities observed. Human Rights Watch also inquired about the time and opportunities for the defendants to build their defense and the failure to release people acquitted or discharged in previous rounds of the trials.

In its response, the Legal Aid Council said its lawyers had met with all the defendants before and during the trials. The agency asserted that participation in a deradicalization program aimed at deterring individuals from violent extremism was compulsory for all defendants, and that their fate after the trials was the responsibility of the attorney general and national security adviser. In what appears to be a contradiction, the Federal Justice Ministry told Human Rights Watch the ministry’s role was strictly prosecutorial, and it had no information on the release or rehabilitation of defendants.

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The National Human Rights Commission, which also monitored the trials, said in its response that it shared Human Rights Watch’s concerns about the lack of official interpreters, defective charges, inadequate defense, and reliance on confessional statements at the trials.

In March, the National Human Rights Commission called on the federal government to ensure the immediate removal from military detention facilities of 475 Boko Haram suspects, who were discharged due to lack of sufficient evidence to bring charges against them in the second round of trials in February

In 2017, the federal government adopted a Policy Framework and National Action Plan for Preventing and Countering Violent Extremism, which highlights access to justice, human rights, the rule of law, and community engagement to prevent and counter Boko Haram extremism. However, there was little sign of this being applied in the recent trials, Human Rights Watch said.

The International Criminal Court prosecutor will continue the preliminary examination  of the situation in Nigeria, including for crimes committed in the Boko Haram conflict. The examination includes a focus on whether national prosecutions are genuine.

The government should make improving trial procedures a priority. It should also consider creating truth commissions or other community reconciliation efforts for those accused of lesser, non-violent crimes so that the justice system can focus first on those accused of the worst crimes. Similar approaches have achieved a measure of success in other countries, including Timpr-Leste.

Nigeria is among a number of countries, including Iraq and Egypt, in which trials for terrorism suspects raise due process concerns. The Nigerian trials are taking place amid increased international support for the country’s counterterrorism efforts. In 2017, the United States approved the sale of US$593 million worth of military equipment to Nigeria, including 12 A-29 Super Tucano light-attack aircrafts the Obama administration had delayed because of human rights concerns. The United Kingdom recently renewed a defence pact with Nigeria, while the United Nations pledged continued assistance in areas including support for criminal justice processes that comply with human rights and rule of law.

“The UN and donor countries should focus not just on boosting military might, but also on ensuring genuine justice and accountability in the campaign against Boko Haram,” Ewang said. “Trials that abuse suspects’ rights are not only unlawful; they can backfire by alienating local communities and handing a recruitment card to groups like Boko Haram.”

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